Case No.:

(AC-Revision-288-1959)

Court:

Court of Appeal

Issue No.:

1960

Principles

·  Landlord and tenant—Eviction for fbi-payment of rent—Section i (a), Rent Restric tion Ordinance—Waiver by landlord of right to punctual payment must be pleaded before court of first instance before framing issues

The plaintiff brought an action claiming the recovery of possession of two shops on the ground of non-payment of a month’s rent. The rent was paid by the tenant (defendant) five days after the institution of the proceedings. The District Judge dismissed the claim on the ground that the rent had already been paid and the judge of the High Court upheld this decision on the ground that the delay in this particular case did not justify the relief claimed.
Held: (i) under section 11 (a) of the Ordinance, delay in the payment of rent beyond the time stipulated in the agreement or, if there is no such agree ment, beyond the time specified in section 19 of the Ordinance, furnishes a good cause for eviction.
(ii) a plea of waiver by the landlord of his right to punctual payment must be made to the trial court before the framing of the issues, so that an issue on that point may be framed.
Spiros Sficas v. Mansour Abdel Mageed (1960) S.L.J.R. 151 followed.

Judgment

(COURT OF APPEAL)*

AMIN OSMAN HAMDI v. EL TAHIR HUSSEIN

(AC-Revision-288-1959)

Revision

The facts are set out in the judgment of B. Awadalla J.

Advocate: Abdel Wahab El Khidir…… for applicant

Respondent in person.

May 13, 1960. Babikir Awadalla J.: —This is an application against the summary dismissal by the Honourable the Judge of the 1-ugh Court of an application to him against the decree of the learned District Judge, Khartoum, in CS-231-1959 The claim before the learned District Judge was one of eviction in which the plaintiff Amin Osman Hamdi (applicant) claimed recovery of possession of two shops on Plot No.27 Light ndus trial Area, Omdurman, on ground of non-payment of rert. Action was

allowed on February 10, 1959. The two shops were alleged to have been let out to respondent at a monthly sum of £S.9.36om/ms and it was contended that the defendant (respondent) failed to pay the January rent claimed in the petition and therefore rendered himself liable to be evicted.

The defendant alleged that the rent was only £S.8 per month, but the court made a note at the top of page 3 that the allegation as to the standard rent was not made prior to the action and proceeded to frame one issue as to non-payment of the January rent. However, during the hearing, the defendant, under oath, admitted that the standard rent as decided in a previous suit was £S.9.36om/ms and we take it that that statement amounted to an admission that he was bound to pay at that rate. Applicant (and plaintiff) admitted on oath that it was usual for respondent (and defendant) to delay the payment of rent due for as long as two weeks and sometimes one month.

Advocate Abdel Wahab said in his oral submissions to the court that rent claimed in the action was paid on February 15,1959, i.e., eight days after institution of the suit. In this he was wrong because action was allowed on February 10, 1959, and so the rent seems to have been paid five days after the institution of the suit. No submissions were made on behalf of defendant and the learned District Judge dismissed the action on the ground that the rent claimed had already been paid.

Applicant (and plaintiff) applied to the Honourable the Judge of the High Court who dismissed the application on the ground that the delay in payment of the rent due in this particular case did not justify the relief claimed.

In the present application, the learned advocate for applicant contends that the reasoning of the Honourable the Judge of the High Court is bad in law because the mere fact that the tenant was proved to have been in arrear on the date of institution of the Suit IS sufficient to ground an order of eviction under section it (a) of the Rent Restriction Ordinance. He referred to Spiros Sflcas v. Mansour Abdel Mageed (1960) S.L.J.R. i in which it was held that if a tenant was not punctual in paying the rent in time and wants to set up an estoppel against a landlord who was acquiescing in such breaches, then he would have to plead the fact in the court below. Respondent had no answer to these arguments save to say that he was paying the rent whenever called upon so to do.

We entirely agree with the learned advocate for respondent in his interpretation of section 11 (a) of the Ordinance: and we think that delay in payment of the rent beyond the time stipulated in the agreement of tenancy (or, if no such time is specified, then beyond the time specified in section 19 of the Ordinance) is a good cause for eviction and if the tenant wants to assert that he was “lulled” by the landlord into the belief that punctual payment was not insisted upon: in other words, if he wants. to set up an estoppel, he must plead the estoppel or otherwise bring it to the notice of the court trying the case before the framing of the issues. Fhat is why the tenant in Sficas’s case failed.

But in this case we have the peculiar situation that applicant himselfadmitted being always tolerant towards unpunctuality on the part of respondent and in view of such an admission, and because the respondent was unrepresented by counsel throughout these proceedings. we consider it would be inequitable to reverse the decision of the learned District Judge without giving respondent a further chance to straighten out his case and bring to the notice of the court this implied waiver by the land lord of his rights under section 19 of the Ordinance.

This application is therefore allowed to the extent that the decree of the learned District Judge is hereby reversed; but the case shall be remitted to the learned District Judge for rehearing on the lines of the above. In the rehearing the respondent (and defendant) will have to be examined with a view to eliciting facts concerning this implied waiver and a separate issue will have to be framed for trial.

Costs of this application shall be borne by respondent.

Abdel Rahman Nur P.J.: —l concur.

* Court: B. Awadalla 1. A. R. El Nur j.